The appellee, O. L. Shelnutt, as tax collector of Chambers county, on June 25, 1932, in pursuance of an order of the probate court of said county, sold 188 1/2 acres of appellants' lands to satisfy the claim of the state and said county for taxes on 914 acres of land duly listed by the appellants and assessed by the tax assessor for the year 1931, less $35.88 paid by the Federal Land Bank of New Orleans, as *Page 194 mortgagee of appellants, and the Bank of LaFayette became the purchaser thereof at and for the sum of $145.31. Shelnutt, on his final settlement as tax collector with the state and county, paid said sum so received, together with other moneys collected as taxes, to the proper authorities of the state and county.
On April 22, 1933, the Federal Land Bank, having foreclosed its mortgage, filed its bill in the circuit court in equity, against said Bank of LaFayette, asserting that it was the owner of 108 1/6 acres of said lands so sold; that said sale was void because "the Tax Collector for Chambers County, Alabama [the complainant in this case], failed to comply with the law made and provided in this State for the sale of lands for taxes in that said official had no proper docket book for the purpose of making the entries therein, as required by law, and that the said Tax Collector failed to make a proper and legal report to the Probate Court of Chambers County, Alabama, all as required by the Revenue Laws of the State of Alabama, in that said purported report of the Tax Collector in the instant case utterly fails to show a description of the property," and praying that the sale be declared void and the certificate thereof be canceled as a cloud on the title of said complainant, Federal Land Bank of New Orleans.
On May 10, 1934, a decree was entered in the equity suit, quieting the title of the complainant therein to said 108 1/6 acres and declaring said tax sale void.
In the meantime the Bank of LaFayette went into liquidation and Ratchford, the liquidating agent, demanded of Shelnutt that he refund to the said Bank of LaFayette said "$145.31 with interest, which it had paid as the purchase price at the said void sale, and also $23.11 with interest, as costs assessed against it" (in said suit between it and said Federal Land Bank of New Orleans) "in which the said sale was declared void, to total $210.80," and after repeated demands and the refusal of the taxpayers to do so, Shelnutt, the appellee, refunded said sum of money so demanded to said liquidating agent. After said sale was declared void, the Federal Land Bank of New Orleans paid a balance of $16.78, due on the taxes for 1931, on lands embraced in its mortgage.
Thereafter, on May 14, 1936, Shelnutt filed this bill, alleging the foregoing facts and seeking to be subrogated to the alleged lien of the state and county for taxes for the year 1931, as against 585.4 acres of land, and two lots and a barn in the town of LaFayette. Included in said acreage are only 80 acres of the land originally sold.
The averments of the bill clearly show that the lands sold under the decree of the probate court were subject to the tax lien and liable for the taxes. This fact takes the case out of the influence of section 3097 of the Code 1923, which provides, in short, that when lands, not liable to sale for the payment of taxes, are sold therefor, the purchaser "may recover from the officer by whose fault or neglect the assessment or sale was made, and the sureties on his official bond, the amount of the purchase money paid him therefor, with interest thereon from the day of sale, together with all costs which are adjudged against him [the purchaser] in any suit concerning said land involving such tax title."
The averments of the bill negative the fact that the collector failed to collect the taxes and same were "charged against him on settlement with the State and County," rendering inapt and inapplicable section 377 of the Revenue Code of 1929 (section 400 of the Revenue Code of 1935) and the decision of this court in Brantley v. Kelly, 226 Ala. 47, 145 So. 649.
On the facts averred in the bill, section 3096 of the Code 1923 constitutes the purchaser of land at tax sale, if the same is "ineffectual to pass the title to the purchaser," an assignee of the "rights and liens of the state and county in and to the lands sold, both as to the taxes paid by said sale and as to taxes subsequently paid by the purchaser." (Italics supplied.) This section of the Code does not confer any right on the negligent and defaulting tax official, or provide any method or procedure by which such negligent, defaulting official may be subrogated to such liens.
Section 3098 of the Code 1923, provides that: "In case of the sale of any real estate, either for the collection of the taxes thereon, or for the collection of other taxes due by the owner thereof, said real estate shall be described in all the proceedings incident to the condemnation and sale thereof, and in the certificate and deed issued to the purchaser, at said sale, in the manner described in the assessment thereof, and in case of failure of the tax collector to so describe said property in any part of said proceedings, certificate, or *Page 195 deed, by reason of which said deed may be held insufficient to convey the property intended to be referred to, the said tax collector and the sureties on his official bond shall be liable to the purchaser at said tax sale, for all amounts paid by him for such land, together with cost of suit for same. Should, however, the property be insufficiently described in the assessment thereof, the said tax assessor and the sureties on his official bond shall likewise be responsible to the purchaser, or in case the said liability has been enforced against said tax collector, then the said assessor and the sureties on his official bond shall be liable to the tax collector, or his sureties, for whatever sum he shall have been compelled to pay to said purchaser on account of said defect, together with cost adjudged against him in suit for such lands." This statute, for the specific default of failing to cause the lands to be described in all proceedings for the sale of lands for taxes, penalizes the tax officials and makes them and their sureties liable to the purchaser "for all amounts paid by him for such land, together with cost of suit for same." This section does not confer on the negligent and defaulting tax official any right or remedy to be reimbursed for money paid out in discharge of the liability imposed upon him.
It is well-settled that the doctrine caveat emptor applies to tax sales, and, in the absence of statute, persons seeking to acquire rights thereunder do so at their own risk — this is the substance of that doctrine. Fields v. Altman et al.,193 Ala. 160, 69 So. 543, Ann.Cas. 1918B, 189; 61 C.J. page 1463, § 2071.
It is also familiar law that the one who seeks affirmative relief, either at law or in equity, cannot rest his right of action or right to relief solely upon his own wrong or negligence. Galliland et al. v. Williams et al., 181 Ala. 173,61 So. 291; 60 C.J. page 708, § 21. If the party moving " 'must trace his right' through a violation by him of positive law, the courts will not lend their aid to reimburse the loss." General Electric Company v. Town of Fort Deposit, 174 Ala. 179,184, 56 So. 802, 804; Allen v. Intendant Councilmen of LaFayette, 89 Ala. 641, 8 So. 30, 9 L.R.A. 497; Bluthenthal Bickert v. Town of Headland, 132 Ala. 249, 31 So. 87, 90 Am. St. Rep. 904.
This doctrine is applied generally to one claiming a right of subrogation in equity, which is never granted as a reward for the complainant's own fault or negligence. Fort Dodge Building Loan Association v. Scott, 86 Iowa, 431, 434, 53 N.W. 283; German Savings Loan Soc. v. Tull et al., 136 F. 1, 69 C.C.A. 1; 60 C.J. page 708, § 21; Montgomery, Superintendent of Banks et al., v. Ward, 227 Ala. 641, 151 So. 583; In re Wallace's Estate, 59 Pa. 401, 405; Hinchman v. Morris, 29 W. Va. 673,689, 2 S.E. 863; Ætna Life Insurance Company v. Middleport, 124 U.S. 534, 547, 8 S. Ct. 625, 31 L. Ed. 537; Mercantile Trust Co. v. Hart (C.C.A.) 76 F. 673, 677, 35 L.R.A. 352; 25 R.C.L. § 49, page 1367.
In Mercantile Trust Co. v. Hart, supra, the court observed that: "Inasmuch as a public tax is a debt of such a character that it cannot be assigned or farmed out by the state or municipality to whom it is due (McInerny v. Reed, 23 Iowa, 410,415), a case must be very exceptional and peculiar when the right arises to be subrogated to the lien of the state or a municipality. It would certainly be contrary to sound publicpolicy to concede that a collector may accept payment of taxes in a mode not authorized by law, and thereafter, when confronted with a possible loss, be allowed the right of subrogation." (Italics supplied.) 76 F. 673, 35 L.R.A. 355.
The payment made by the appellee to the Bank of LaFayette was not made in satisfaction of taxes due by the appellants, property owners and taxpayers, but in satisfaction of appellee's liability for negligence in failing to comply with the provisions of section 3098 of the Code 1923. The appellants' liability for the taxes had already been fully satisfied with money paid to appellee by the Federal Land Bank of New Orleans and the Bank of LaFayette, and the law gave the Bank of LaFayette two remedies for its loss: First, to pursue its lien against the property sold at the void tax sale, and, second, a right of action against the tax collector for his negligence in failing to comply with the requirements of the law in respect to such sale, in consequence of which said sale is void.
The Legislature in said section 3098 of the Code made express provision for reimbursement of the tax collector when the sale was ineffectual in consequence of the negligence of the assessor, by imposing the liability on the assessor and giving the tax collector a right to sue the assessor and his bondsmen; but it makes no provision to *Page 196 compensate the collector for his own negligence. The purpose of the statute in penalizing the tax officials for negligence proximately resulting in effective sales for taxes, was to stimulate greater diligence on their part in making efficacious records of such sales, and no authority can be found for subrogating such negligent officials to the liens of the state and county as a reward for such negligence.
But for the statutes, Code, §§ 3096, 3098, the purchaser at a void sale would be remediless. In Fields v. Altman et al.,193 Ala. 160, 162, 163, 69 So. 543, 544, Ann.Cas. 1918B, 189, this court approved the following:
" ' "After a careful research we have found no case in which a purchaser at a void tax sale has, without the aid of a statute, been permitted to recover even the taxes lawfully assessed upon the land and paid by his purchase. It would seem equitable that he should at least recover the taxes which the landowner ought to have paid, and which he failed to pay. Many states have, accordingly, passed statutes in regulation of this subject, and giving the relief indicated; and, so far as we have been able to discover, whenever this relief has been given or sanctioned by a court of last resort, it has been by virtue of statutory law." ' "
The statutes cited in this opinion were enacted after the decision of this court in Fields v. Altman et al., supra, and still no provision was made to compensate a defaulting tax official for his own negligence.
The bill, in my judgment, is without equity and the demurrers thereto were erroneously overruled. I therefore respectfully dissent.
FOSTER, J., concurs in the foregoing dissent.